The Courts: The Conservative Takeover Will Be Complete
(Elections Matter)
The Courts
The Conservative Takeover Will Be Complete
by Dahlia Lithwick
For anyone considering the 2012 election’s importance to the future of the American judiciary, one fact stands out: next November, Ruth Bader Ginsburg will be seventy-nine years old. If a Republican wins the presidential election, he or she may have an opportunity to seat Ginsburg’s successor, replacing the Supreme Court’s most reliably liberal jurist with a conservative. That would mean that the Court—currently balanced almost elegantly between four liberals, four conservatives, and the moderate conservative Anthony Kennedy—would finally tilt decisively to the right, thereby fulfilling Edwin Meese’s dream, laid out in his famous 1985 speech before the American Bar Association, of reshaping the Court around one coherent “jurisprudence of original intention.” Meese, who was then Ronald Reagan’s attorney general, wanted nine conservative constitutional originalists on the Court. He may soon get his wish. A 2008 study by Richard Posner, a federal appeals court judge, and William Landes, a law professor at the University of Chicago, examined the voting records of seventy years of Supreme Court justices in order to rank the forty-three justices who have served on the Court since 1937. They concluded that four of the five most conservative justices to serve on the Supreme Court since 1937 sit on the Supreme Court today. Justice Clarence Thomas ranked first.
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But it’s not just the Supreme Court that would tilt further right. The high court only hears seventy-some cases each year. The vast majority of disputes are resolved by the federal appellate courts, which are the last stop for almost every federal litigant in the country. And the one legacy of which George W. Bush can be most proud is his fundamental transformation of the lower federal judiciary—a change that happened almost completely undetected by the left. At a Federalist Society meeting in 2008, Bush boasted that he had seated more than a third of the federal judges expected to be serving when he left office, most of them younger and more conservative than their colleagues, all tenured for life and in control of the majority of the federal circuit courts of appeals. The consequences of that change at the appeals court level were as profound as they were unnoticed. As Charlie Savage of the New York Times put it at the time, the Bush judges “have been more likely than their colleagues to favor corporations over regulators and people alleging discrimination, and to favor government over people who claim rights violations. They have also been more likely to throw out cases on technical grounds, like rejecting plaintiffs’ standing to sue.” In short, they have copied and amplified the larger trends at the Roberts Court: a jurisprudence that skews pro-business, pro-life, anti-environment, and toward entangling the church with the state. Under the rhetorical banners of “modesty” and “humility” and “strict construction,” the rightward shift has done more to restore a pre-New Deal legal landscape than any legislative or policy change might have done.
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Why have the Republicans been so much more effective at dragging the judicial branch rightward than Democrats have been in yanking it back? Focus, mainly. Since the Meese revolution of the mid-1980s, the GOP has been better at constitutional messaging, better at mobilizing the electorate, and better at laying out a judicial vision than liberals, who still seem to believe that unless the Supreme Court overturns Roe v. Wade (or perhaps the Affordable Care Act), judges are not really a voting issue.
Perhaps the best evidence of the resulting “intensity gap” over the work and composition of the federal courts lies not in the lopsided makeup of the bench but in the proposals to “reform” the judicial branch that have been put forward in recent months by GOP presidential hopefuls. Just for starters: Rick Perry seeks to term-limit federal judges, and before he left the race Herman Cain talked about “overturning” the Supreme Court (whatever that means) if it ever legalizes same-sex marriage. Michele Bachmann believes Congress can and should keep the federal courts from ruling on same-sex marriage. Rick Santorum says he wants to just do away with the entire U.S. Ninth Circuit Court of Appeals. And Newt Gingrich says his plans for the federal judiciary include empowering members of Congress to summon Supreme Court justices to defend their opinions. He also wants Congress to pass a “personhood law” that would define life as beginning at conception under the Fourteenth Amendment, and thus, as he said, “undo all of Roe vs. Wade, for the entire country, in one legislative action.” Ron Paul joins Bachmann, Gingrich, and Perry in promising to strip judges of authority to hear any cases involving religion, privacy, the right to marry, and other matters.
More at link: http://www.washingtonmonthly.com/magazine/january_february_2012/features/the_courts034474.php#
This part really says it all:
\"If you care about the future of abortion rights, stem cell research, worker protections, the death penalty, environmental regulation, torture, presidential power, warrantless surveillance, or any number of other issues, it’s worth recalling that the last stop on the answer to each of those matters will probably be before someone in a black robe.\"
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